https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2360

Njeu v Kenya Veterinary Vaccine Production Institute & another (Cause E263 of 2025) [2026] KEELRC 2360 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2360 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E263 of 2025 AK Nzei, J July 31, 2026 Between Stephen Gitonga Njeu Claimant and Kenya Veterinary Vaccine Production Institute 1st Respondent Kenya Agricultural and Livestock Research Organisation 2nd Respondent Ruling 1.The Claimant sued the Respondents herein vide a Statement of Claim dated 20th March, 2025 and filed on 2nd April, 2025. The Court’s record shows that the Statement of Claim was subsequently amended. An amended statement of claim, dated 30th April, 2025, is shown to have been filed on 2nd May, 2025. The Claimant claims a total of Kshs.13,034,618.9 in alleged accrued salary underpayments, house allowance and other allowances pleaded to have accrued from January 2008 to the year 2023. The Claimant also prays for an order that the Respondents’ refusal, neglect and failure to pay the aforesaid sums was unfair, unlawful and amounts to an unfair labour practice. 2.The Claimant pleads as follows at paragraph 16 of the amended statement of claim:-“16.The Claimant retired from the Respondents service with effect from 1st July, 2023, but the Respondents did not pay the Claimant his accrued salary underpayment, acting allowances and other allowances”. 3.The 1st Respondent filed a Preliminary Objection dated 22nd September, 2025 and called for the Claimant’s suit to be struck off on grounds:-(a)The Court lacks Jurisdiction to entertain and to determine the instant claim by dint of Section 89 of the Employment Act 2007 which provides that actions arising out of a contract of service may not be filed after the end of three (3) years from the date of the act, neglect or default complained of, and that continuing injuries or damage may not be filed after the expiry of twelve (12) months from the date of cessation thereof. 4.Written submissions have been filed by both parties pursuant to the Court’s directions in that regard. 5.Issues falling for determination herein, in my view, are:-(a)Whether the Claimant’s claim herein is statute-barred.(b)Whether this Court has jurisdiction to entertain, to hear and to determine the Claimant’s suit herein. 6.The nature and scope of the Claimant’s pleaded cause of action is captured in paragraphs 9, 10, 11, 12 and 13 of the amended statement of claim as follows:-“9.By a letter dated 10th March, 2003, the Claimant was promoted by the 1st Respondent to the position of Lab Technologist 1 following a staff appraisal report 2001.10.The Claimant continued working for the 1st Respondent until 13th January, 2005 when he received a letter from the 2nd Respondent’s Director transferring his service to the 2nd Respondent.11.The transfer of the Claimant’s services to the 2nd Respondent meant that the Claimant had been placed on a Lower grade – Lab Tech (ii) on transfer of services from KEVE VAPI to KARI, and as a consequence the Claimant was greatly prejudiced and disadvantaged. That the Claimant wrote a letter dated 1st March, 2007 seeking placement of transfer service.12.The Claimant’s transfer and grading of his services with the 2nd Respondent was not only contrary to KEVE VAPI Human Resource Manual of 2012, but in contravention of Section 19(2) of the Employment Act 2007.13.That despite the Claimant’s concern, the Respondents did not address his concerns, which forced him to write a letter dated 6th March, 2023 to the 1st Respondent seeking payment of the amount underpaid over the years and payment of acting allowance.14.. . .15.That the 1st Respondent wrote a letter dated 19th July, 2023 and refused to act on the Claimant’s complaints on ground that the Claimant had retired from Service.” 7.It is clear from the foregoing pleading by the Claimant that his alleged cause of action arose in the year 2005 when he was allegedly down-graded from Lab Technologist 1 to Lab Technologist 11 upon transfer of his services from the 1st Respondent to the 2nd Respondent. This is over twenty (20) years ago. 8.The cause of action pleaded by the Claimant falls outside the statutory limitation periods prescribed under Section 89 of the Employment Act, and are therefore statute-barred in law. 9.The Claimant pleads that the alleged downgrading was contrary to Section 19(2) of the Employment Act. He has, based on this pleading, computed a total sum of Kshs.13,034,618.9, which he pleads is made up of salary underpayments, house allowance and other allowances which he ought to have earned/to have been paid over the years upto the year 2023. It is the said sum which the Claimant now claims. 10.First and foremost, it is to be noted that the Claimant’s alleged cause of action is alleged to have arisen in the year 2005. This was long before the enactment and coming into effect of the Employment Act, 2007 which came into effect in the year 2008; over three (3) years after the Claimant’s cause of action had allegedly arisen. It is trite that the law does not operate in retrospect. The Claimant can simply not lawfully anchor his suit/claim on a statute that had not been enacted when his alleged cause of action arose. To that extend, the Claimant’s suit is incompetent. 11.In view of the foregoing, the legal concept of a continuing injury as provided in Section 89 of the Employment Act 2007 cannot apply in the Claimant’s case. Even if the said concept were to apply regarding the Claimant’s claim herein, and the Claimant was to base his claim herein thereon, still the Claimant’s claim would be incompetent, as it would be statute-barred. 12.Section 89 (formerly Section 90) of the Employment Act provides as follows:-“Notwithstanding the provisions of Section 4(1) of the Limitation of Actions Act, no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.” 13.As stated in this Ruling, the Claimant has pleaded at paragraph 16 of his amended statement of claim that he retired from the Respondents’ service with effect from 1st July, 2023. This would be the date of cessation of any continuing injury, assuming there was one. Under Section 89 of the Employment Act 2007, a suit founded on a continuing injury ought to be filed within twelve (12) months from the date of cessation thereof. 14.The Claimant’s suit herein is shown to have been filed on 2nd April, 2025, over nineteen (19) months from the date of the Claimant’s retirement/perceived date of cessation. 15.I make a finding that the Claimant’s suit herein is incompetent; it is statute-barred and therefore bad in law. This Court has no jurisdiction to entertain, to hear and to determine a suit that is barred by statute. A court of law derives its Jurisdiction from the law, and cannot assume Jurisdiction over a suit that is barred by statute. 16.The Supreme Court of Kenya stated as follows in the case of Samuel Kamau Macharia & Another – vs – Kenya Commercial Bank Limited & 2 Others [2012] eKLR:-“A Court’s Jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise Jurisdiction as conferred by the Constitution or other written law, and cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law . . . whether a court of law has jurisdiction to entertain a matter before it . . . goes to the very heart of the matter, for without Jurisdiction, the Court cannot entertain any proceedings.” 17.On its part, the Court of Appeal stated as follows in the case of Owners of Motor Vessel “Lilian S” – vs – Caltex Oil (Kenya) Limited [1989] eKLR (Nyarangi, JA):-“. . . I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obligated to decide the issue straight away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a Court has no Jurisdiction, there would be no basis for a continuation of the proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without Jurisdiction.” 18.Without jurisdiction, this Court cannot make one more step. I must down my tools. 19.Consequently, and having considered written submissions filed on behalf of the parties herein, the Respondent’s Preliminary Objection dated 22nd September, 2025 is hereby upheld, and the Claimant’s suit herein is hereby struck off, with no order as to costs. 20.The Court file herein is hereby closed. 21.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026AGNES KITIKU NZEIJUDGEOrderThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:Miss Kimani for the ClaimantMr. Chebon for the Respondent